EFF: Dangerous Terms A User's Guide to EULAs

They're called End User License Agreements, or EULAs. Sometimes
referred to as "shrinkwrap" or "click-through" agreements, they are
efforts to bind consumers legally to a number of strict terms ? and
yet you never sign your name. Frequently, you aren't even able to see
a EULA until after you've purchased the item it covers.

...

With consumer activism, as well as actions that push our legislatures
and courts to change consumer protection laws, we can prevent
corporations from taking away our rights one mouse click at a time.

If you have been harmed by a EULA, or threatened with legal action
because of one, EFF wants to hear your story. E-mail us at
EULAharm@eff.org.

Now, however, some companies whose software has been reverse
engineered have started to fight back. They have added anti-reverse
engineering provisions to the "shrinkwrap" licenses that accompany
their products.

"Now"? This isn't new. I can't recall ever seeing a
commercial shrinkwrap license without prohibitions against
reverse-engineering. I found a
censorware example from 1997, with a reply indicating this issue
goes back decades (n.b., this is in part why I did my
pioneer work
against censorware ,
in virtual anonymity for so long).

Major point:

Reverse engineering itself, then, has been held to be fair use.

There's a difference between the idea that
"Reverse engineering itself, then, has been held to be fair use",
per se,
intrinsically, and that certain instances of reverse engineering have
been held to be fair-use, but others have been denied as fair-use.
That is, between is fair-use, versus could be, but also
might not be, fair-use. A reader of that article can easily get the
impression that the courts have said reverse-engineering itself is
always permitted as fair-use, whereas they've also said in other cases
that it's not fair-use.

43. Jansson and Skala admitted that they reverse engineered and
decompiled Cyber Patrol Cyber Patrol, which violates the Cyber Patrol
license agreement and creates an intermediate copy of Cyber
patrol. ... In either case, by creating an intermediate copy of the
Cyber Patrol software the defendants committed a prima facie copyright
violation. ...

No Fair Use Defense

44. Fair use is a statutory affirmative defense to conduct
otherwise actionable under the copyright law. ...

45. In general, any claimed "fair use" must be
"consistent with the ultimate aim [of the Copyright Act] to stimulate
artistic creativity for the general public good" ...

46. It is the defendants' burden to demonstrate such "fair use." ...

47. The individual defendants have no "fair use" defense here
because they have neither asserted it nor submitted evidence
supporting any fair use defense. ...

48. In addition, the purpose of the copying here is
inconsistent with the general public good. The individual defendants'
avowed purpose for decompiling CyberPatrol was to allow "youth access"
to inappropriate content on the World-Wide-Web. That purpose
contradicts the public interest as specifically found by Congress ...

49. Finally, to negate fair use one need only show that if the
challenged use should become widespread, it would adversely affect the
potential market for the copyrighted work ...

50. By their own admission, Jansson and Skala created the
Bypass Code to "break" CyberPatrol ... Software explicitly designed to
make CyberPatrol ineffective for its intended use can do nothing other
than "adversely affect the potential market for the copyrighted work" ...

So whether reverse-engineering is fair-use also has to do with
whether the court finds the specifics to be in "the general public good".